Motion to Compel Granted; Court Observations on How 30(b)(6) Depositions Work

Collins v. Nissan N.A., 2:11cv428 (5/9/13)

Judge: Rodney Gilstrap

Holding: Motion to Compel GRANTED

I remember when Collins v. Nissan meant a product liability case. Not anymore.

Plaintiff sought an order in this patent case: (1) preventing defendant Nissan from presenting evidence and testimony at trial concerning certain topics (which were the subject of deposition of Nissan corporate reps); (2) ordering Nissan to provide substantive interrogatory responses; and (3) providing translations and a narrative response to one interrogatory. Judge Gilstrap heard arguments from both sides at an oral hearing, and issued this order, being "of the opinion that Nissan has
failed to comply with its discovery obligations in good faith and that
Plaintiffs are entitled to appropriate relief under Fed. R. Civ. P. 37."

“It is well settled,” Judge Gilstrap
continued, “that the rules of discovery in the Eastern District of Texas are
accorded a broad and liberal treatment to affect their stated purpose of
adequately informing litigants in civil trials,” citing DDR Holdings, LLC v.
Hotels.com, L.P., et al., 2012 WL 2935172, at *2 (E.D. Tex. July 18, 2012). As in DDR, the primary issue dealt with deposition notices.

Nissan may not ignore certain
topics in a 30(b)(6) deposition notice simply because it believes the topics
noted are ambiguous or otherwise addressed by its document production. The
Court finds that Nissan did just that in this case. If Nissan’s true concern
was ambiguity, procedural devices are available and known to Nissan to seek
clarification of the noticed topics. Nissan never sought clarification from
Plaintiffs or from the Court. This District’s local discovery rules are clear,
and they do not excuse a failure to provide 30(b)(6) testimony simply because
Nissan believes that its document production “speak for themselves.”

Here, Nissan unilaterally decided
to block discovery into topics clearly identified in a 30(b)(6) deposition
notice. This is not permitted under the Federal Rules of Civil Procedure or this
Court’s Local Rules. Such unilateral action blatantly usurps the Court’s
function as the gatekeeper in matters of discovery. Having been put on notice
of Plaintiffs’ 30(b)(6) topics, Nissan was required to either (1)
tender a witness on each topic; (2) confer with Plaintiffs’ counsel to discuss the scope of
the deposition and resolve any disputes among themselves; or (3) seek relief from the Court once a
meet-and-confer between the parties did not resolve the dispute. Instead, Nissan acted
unilaterally, purposefully and with knowing disregard for these established steps by refusing to
present a knowledgeable witness at all on these topics. Such conduct is precisely that for
which Fed. R. Civ. P. 37 provides a remedy.

The Court also found that Nissan failed
to act in good faith by objecting to Plaintiffs’ Second Set of Interrogatories
as untimely and refusing to provide substantive responses just because its
response deadline, with the three days added pursuant to L.R. cv-6(a), (oh no,
they didn’t…) “would fall three days after the close of fact discovery.” (Yep, they did).

The Court believes that it should
not have to remind the parties that a deadline does not prohibit or discourage
a response prior to the last possible moment; rather, a deadline sets the outer
limit for a timely response. Here, where the response deadline falls three days
after the close of discovery (and only after Nissan chooses to take advantage
of the additional three days offered by the Local Rules), the proper course of action
for the responding party is to either meet and confer seeking to extend the
discovery cutoff by three days, endeavor to respond in a timely manner, or seek
direction from the Court. The Court cannot help but be persuaded that Nissan’s
refusal to pursue none of the above options reveals a strategic but improper
decision to consciously impede Plaintiffs’ discovery efforts. Again, Fed. R.
Civ. P. 37 provides a remedy.

Accordingly, the Court granted Plaintiffs’
Motion to Compel and ordered that Nissan, within fourteen (14) days,
provide to Plaintiffs at Nissan’s cost:

(1) substantive responses to
Plaintiffs’ Second Set of Interrogatories,

(2) a narrative response to
Plaintiffs’ Interrogatory No. 5, and

(3) certified English translations
of Japanese documents (presently existing in whole or part in Japanese)
referenced in Nissan’s Response to Interrogatory No. 5.

The Court found that Plaintiffs’
request to exclude Nissan from presenting evidence and testimony at trial from
fact witnesses (and expert witnesses to the extent they rely on the testimony
of fact witnesses) concerning the noticed 30(b)(6) topics 15 and 17 “has merit,
but finds that now is not the most appropriate time to administer such relief.
The Court believes that when it considers the various pretrial motions that the
parties will present that it can then better consider extending such relief as
justified by Nissan’s conduct at that time. Accordingly, the Court reserves the application of
appropriate relief in this regard until such future date before the start of trial as the Court may
determine.

As my dad used to say, the more things change, the more
they stay the same…

Comments

Motion to Compel Granted; Court Observations on How 30(b)(6) Depositions Work

Collins v. Nissan N.A., 2:11cv428 (5/9/13)

Judge: Rodney Gilstrap

Holding: Motion to Compel GRANTED

I remember when Collins v. Nissan meant a product liability case. Not anymore.

Plaintiff sought an order in this patent case: (1) preventing defendant Nissan from presenting evidence and testimony at trial concerning certain topics (which were the subject of deposition of Nissan corporate reps); (2) ordering Nissan to provide substantive interrogatory responses; and (3) providing translations and a narrative response to one interrogatory. Judge Gilstrap heard arguments from both sides at an oral hearing, and issued this order, being "of the opinion that Nissan has
failed to comply with its discovery obligations in good faith and that
Plaintiffs are entitled to appropriate relief under Fed. R. Civ. P. 37."

“It is well settled,” Judge Gilstrap
continued, “that the rules of discovery in the Eastern District of Texas are
accorded a broad and liberal treatment to affect their stated purpose of
adequately informing litigants in civil trials,” citing DDR Holdings, LLC v.
Hotels.com, L.P., et al., 2012 WL 2935172, at *2 (E.D. Tex. July 18, 2012). As in DDR, the primary issue dealt with deposition notices.

Nissan may not ignore certain
topics in a 30(b)(6) deposition notice simply because it believes the topics
noted are ambiguous or otherwise addressed by its document production. The
Court finds that Nissan did just that in this case. If Nissan’s true concern
was ambiguity, procedural devices are available and known to Nissan to seek
clarification of the noticed topics. Nissan never sought clarification from
Plaintiffs or from the Court. This District’s local discovery rules are clear,
and they do not excuse a failure to provide 30(b)(6) testimony simply because
Nissan believes that its document production “speak for themselves.”

Here, Nissan unilaterally decided
to block discovery into topics clearly identified in a 30(b)(6) deposition
notice. This is not permitted under the Federal Rules of Civil Procedure or this
Court’s Local Rules. Such unilateral action blatantly usurps the Court’s
function as the gatekeeper in matters of discovery. Having been put on notice
of Plaintiffs’ 30(b)(6) topics, Nissan was required to either (1)
tender a witness on each topic; (2) confer with Plaintiffs’ counsel to discuss the scope of
the deposition and resolve any disputes among themselves; or (3) seek relief from the Court once a
meet-and-confer between the parties did not resolve the dispute. Instead, Nissan acted
unilaterally, purposefully and with knowing disregard for these established steps by refusing to
present a knowledgeable witness at all on these topics. Such conduct is precisely that for
which Fed. R. Civ. P. 37 provides a remedy.

The Court also found that Nissan failed
to act in good faith by objecting to Plaintiffs’ Second Set of Interrogatories
as untimely and refusing to provide substantive responses just because its
response deadline, with the three days added pursuant to L.R. cv-6(a), (oh no,
they didn’t…) “would fall three days after the close of fact discovery.” (Yep, they did).

The Court believes that it should
not have to remind the parties that a deadline does not prohibit or discourage
a response prior to the last possible moment; rather, a deadline sets the outer
limit for a timely response. Here, where the response deadline falls three days
after the close of discovery (and only after Nissan chooses to take advantage
of the additional three days offered by the Local Rules), the proper course of action
for the responding party is to either meet and confer seeking to extend the
discovery cutoff by three days, endeavor to respond in a timely manner, or seek
direction from the Court. The Court cannot help but be persuaded that Nissan’s
refusal to pursue none of the above options reveals a strategic but improper
decision to consciously impede Plaintiffs’ discovery efforts. Again, Fed. R.
Civ. P. 37 provides a remedy.

Accordingly, the Court granted Plaintiffs’
Motion to Compel and ordered that Nissan, within fourteen (14) days,
provide to Plaintiffs at Nissan’s cost:

(1) substantive responses to
Plaintiffs’ Second Set of Interrogatories,

(2) a narrative response to
Plaintiffs’ Interrogatory No. 5, and

(3) certified English translations
of Japanese documents (presently existing in whole or part in Japanese)
referenced in Nissan’s Response to Interrogatory No. 5.

The Court found that Plaintiffs’
request to exclude Nissan from presenting evidence and testimony at trial from
fact witnesses (and expert witnesses to the extent they rely on the testimony
of fact witnesses) concerning the noticed 30(b)(6) topics 15 and 17 “has merit,
but finds that now is not the most appropriate time to administer such relief.
The Court believes that when it considers the various pretrial motions that the
parties will present that it can then better consider extending such relief as
justified by Nissan’s conduct at that time. Accordingly, the Court reserves the application of
appropriate relief in this regard until such future date before the start of trial as the Court may
determine.

As my dad used to say, the more things change, the more
they stay the same…